The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Lori Pilger (Lincoln Journal-Star) Saturday:
An Ord man has agreed to a $16,000 settlement with the central Nebraska town that filed a lawsuit against him last year in an attempt to get him to stop writing letters and emails to city officials and the police department that they called "burdensome."
And from Judge John Gerrard in Brock v. City of Ord (D. Neb. Sept. 17, 2021), in the opinion denying the city's motion to dismiss the First Amendment retaliation claim (and denying qualified immunity):
[J]ust because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victory—but instead, he's filed another lawsuit in response, despite facing no current peril.
This Court's docket is full of cases genuinely implicating lives, livelihoods, and liberty—but instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble. It is tempting to turn this car around and go straight home. But of course, as long as the parties intend to keep it up, the Court is duty-bound to preside, so instead, the Court proceeds to the merits….
Brock's complaint alleges the following[:] …
- [Plaintiff Guy] Brock regularly wrote letters to elected officials of the City [of Ord], including [Mayor Dan] Petska, related to activities of city government.
- Petska, [City Attorney Heather] Sikyta, and other City representatives met in the winter of 2019–2020 to discuss Brock's letter-writing, and ways to prevent Brock from further petitioning his representatives.
- At this meeting, Petska and Sikyta decided to take legal action against Brock in response to his practice of letter- writing.
- On March 4, 2020, the City sued Brock in the District Court for Valley County, Nebraska requesting a permanent injunction enjoining Brock from sending "any kind" of communication to the City or the Ord Police Department "unless directly related to a city service or other city function related specifically to Defendant and his property."
- In its lawsuit, the City also requested damages in an undisclosed sum, attorney fees, and the costs of the lawsuit.
- Brock retained counsel to defend the lawsuit, and the District Court of Valley County ultimately dismissed the action on June 12, 2020 for failure to state a claim.
Brock alleges that the above actions by the defendants violated his First Amendment rights ….
"[T]o establish a First Amendment retaliation claim in a particular case, a plaintiff must show (1) that he engaged in a protected activity, (2) that the defendant's actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity, and (3) that a causal connection exists between the retaliatory animus and the injury."
Brock has pleaded sufficient facts to show that he engaged in a protected activity. Petitioning the government for redress is "among the most precious of the liberties safeguarded by the Bill of Rights." Writing letters to elected representatives about government activities is "unquestionably" a protected activity.
Brock has also pleaded facts sufficient to reasonably infer the defendants' conduct caused him an injury that would chill a person of ordinary firmness from continuing to petition city officials…. Here, Brock has alleged that in response to his letter-writing, the defendants brought legal action against him. In the resulting lawsuit, the City sought to permanently limit Brock's speech and also requested monetary damages, attorney fees, and costs. Brock further alleges that he was "forced to retain counsel at his own expense in order to defend his rights to speak freely and petition his government." … It can … be plausibly inferred that a person of ordinary firmness would be chilled from further petitioning city officials once facing civil liability and the threat of monetary damages. (Nor would it be unreasonable to conclude that a lawsuit expressly meant to prevent Brock from petitioning was, in fact, meant to deter him from petitioning.) …
Brock has alleged sufficient facts to establish a violation of a constitutional right—specifically, a violation of his right to be free from retaliatory action by the government for petitioning his elected officials…. [And a]t the time the lawsuit was filed, it was clearly established beyond debate that citizens have a right to be free from intentional, retaliatory conduct by the government in response to protected petitioning. Additionally, this Circuit had held only two classes of petitioning speech to be unprotected: (1) "sham" speech directed only toward harming others and not toward influencing government action; and (2) certain genuine attempts to influence governmental policy that are violent, illegal, or defamatory.
Further, the precedent of this Circuit clearly established that citizens have a right to be free from government officials engaging the machinery of the government to lodge baseless proceedings against them for exercising their right to petition…. Taking Brock's allegations as true—that he was writing letters to his elected officials about city activities, and that Petska and Sikyta decided to assert the lawsuit because of that speech—every reasonable official would have known that Brock's speech was protected from intrusion by the First Amendment.
In light of [Circuit precedent], reasonable city officials would have also known that their lawsuit was without merit if, as Brock alleges, he was only engaging in protected petitioning activities not subject to restraint by the government. Finally, although Williams and Harrison dealt with slightly different government conduct, they clearly established that frivolous legal and regulatory actions taken by local government against citizens in retaliation for petitioning violate the First Amendment…. Putting it all together, every reasonable official would have understood that baseless, retaliatory legal proceedings against a citizen for petitioning the government violate the First Amendment…..